SCOTUS leaves in place ruling that protects right to record police

Illinois law banning recording of police officers violates First Amendment.

The United States Supreme Court rejected a request from a Chicago-area prosecutor to review a recent ruling that the First Amendment protects a right to record the actions of police officers as they perform their public duties.

The lower court's decision was hotly contested. A two-judge majority ruled in May that "the act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording." But Judge Richard Posner dissented. During oral arguments, he worried upholding a First Amendment right to record the police would lead to "a lot more of this snooping around by reporters and bloggers."

In his dissent, Judge Posner claimed the majority's ruling "casts a shadow over electronic privacy statutes of other states." But the majority disagreed. "The Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense," the other two judges ruled. They suggested laws that only limited recording in private settings stood a better chance of passing muster under the First Amendment.

The Supreme Court's decision to let the Seventh Circuit's ruling stand is a victory for the American Civil Liberties Union of Illinois, which spearheaded the case. The ACLU's chapter in Massachusetts also had success vindicating a First Amendment right to record the actions of public officials. The First Circuit Court of Appeals ruled police violated the rights of a Boston man when they arrested him for using his cell phone to record the arrest of a suspect. In March, the city agreed to pay $170,000 to settle his civil rights lawsuit.

Promoted Comments

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

The Seventh Circuit court is a federal court. By denying this case, the SCOTUS has essentially let this ruling stand and implicitly supported it as legal precedent.

Precedent in the 7th circuit but not necessarily to be considered law elsewhere.

I thought about addressing this in my story but thought it might be too far down in the weeds.

You're right that refusing to hear the case doesn't create a binding precedent the way reviewing and affirming the decision would have. *However,* circuit courts do pay attention to what their sister circuits do. They aren't required to follow the precedents of other circuits (as they are Supreme Court decisions) but they are supposed to give those decisions some weight in rendering their decisions. So the fact that two different circuits have considered this issue and come to the same conclusion will weigh heavily on any future circuits that take up the same issue.

So it's not as big a deal as the Supreme Court affirming the decision, but it is important.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

The Seventh Circuit court is a federal court. By denying this case, the SCOTUS has essentially let this ruling stand and implicitly supported it as legal precedent.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

The Seventh Circuit court is a federal court. By denying this case, the SCOTUS has essentially let this ruling stand and implicitly supported it as legal precedent.

Precedent in the 7th circuit but not necessarily to be considered law elsewhere.

They call it snooping, I call it watch dogging. Bad enough that most local law enforcement agencies are becoming para-military in style and function. I prefer to have a way to throttle them back a bit on some levels, this being one of the preferred ones.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

(Not really sure who downvoted this, but...) Yeah that's my takeaway too. This doesn't create any Supreme Court precedence, is my understanding of it. All this really says is "shooting down this law didn't violate any constitutional issues", which isn't the same as "all laws of this kind are unconstitutional".

If the Supreme Court won't touch that ruling they are in effect saying to all the courts that this is what think is correct. Other courts can use it as an indicator of precedent how they should rule as well.

it's not law of the land (yet) but if another district wants to rule differently that's when the SCOTUS would get invovled - when 2 districts are in contention.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

The Seventh Circuit court is a federal court. By denying this case, the SCOTUS has essentially let this ruling stand and implicitly supported it as legal precedent.

Precedent in the 7th circuit but not necessarily to be considered law elsewhere.

I thought about addressing this in my story but thought it might be too far down in the weeds.

You're right that refusing to hear the case doesn't create a binding precedent the way reviewing and affirming the decision would have. *However,* circuit courts do pay attention to what their sister circuits do. They aren't required to follow the precedents of other circuits (as they are Supreme Court decisions) but they are supposed to give those decisions some weight in rendering their decisions. So the fact that two different circuits have considered this issue and come to the same conclusion will weigh heavily on any future circuits that take up the same issue.

So it's not as big a deal as the Supreme Court affirming the decision, but it is important.

I thought about addressing this in my story but thought it might be too far down in the weeds.

You're right that refusing to hear the case doesn't create a binding precedent the way reviewing and affirming the decision would have. *However,* circuit courts do pay attention to what their sister circuits do. They aren't required to follow the precedents of other circuits (as they are Supreme Court decisions) but they are supposed to give those decisions some weight in rendering their decisions. So the fact that two different circuits have considered this issue and come to the same conclusion will weigh heavily on any future circuits that take up the same issue.

So it's not as big a deal as the Supreme Court affirming the decision, but it is important.

Well put. Two circuit court rulings, along with the SCOTUS declining the opportunity to overturn them, sets a pretty substantial precedent. Another circuit could certainly come to the opposite conclusion, but they'd be asking to get overturned by the Supreme Court afterwards.

Just an observation, but Judge Posner has recently been lauded by Arsians for his viewpoints on patent law cases, while other judges have been getting a bit more flack. I doubt this position of Posner's on the First Amendment issue will be as popular here. So it bears keeping in mind that these are all complicated matters, and that another judge might hold exactly opposite views on both points. Personally, I'd prefer the judge that shares my views on the First Amendment even if we disagree on patent policy, as opposed to the opposite. But in either case, I wouldn't vilify, or praise, any judge too much based on one issue alone.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

(Not really sure who downvoted this, but...) Yeah that's my takeaway too. This doesn't create any Supreme Court precedence, is my understanding of it. All this really says is "shooting down this law didn't violate any constitutional issues", which isn't the same as "all laws of this kind are unconstitutional".

I'm not really sure how the Supreme Court works in regards to cases they uphold the rulings of lower courts. But it seems to me that by upholding the 7th Circuit on this one, it's saying to the nation at wide that they are deeming such a law as the one from Illinois as having no Constitutional merit. While it's not an obvious precedent, it's seems to me to be kind of an in absentia precedent. I, for one, feel really confident with what will come from this ruling, but I do see why there is cause for concern.

Well put. Two circuit court rulings, along with the SCOTUS declining the opportunity to overturn them, sets a pretty substantial precedent. Another circuit could certainly come to the opposite conclusion, but they'd be asking to get overturned by the Supreme Court afterwards.

Maybe not "asking to get overturned" so much as "provoking a Circuit split", to force the Supreme Court to substantively address matter.

Well put. Two circuit court rulings, along with the SCOTUS declining the opportunity to overturn them, sets a pretty substantial precedent. Another circuit could certainly come to the opposite conclusion, but they'd be asking to get overturned by the Supreme Court afterwards.

Maybe not "asking to get overturned" so much as "provoking a Circuit split", to force the Supreme Court to substantively address matter.

Well yes, that would definitely happen.

But I'm saying that if two circuits have ruled the same way, and the Supreme Court has declined to take the case (which is arguably a passive affirmation), then it's also likely that the nonconforming decision will not come out on top.

As an Illinoisan, I am terribly disappointed in my elected "public servants." Not only did they take much too long to amend a very, very bad law, but then Anita Alvarez goes to bat for the bad law and wastes our taxpayer money in the process.

And the new law (as amended by our legislature) isn't much better than the old law. It is essentially just a carve out exemption for police and public servants, leaving the overly restrictive "both parties must agree to an audio recording" policy in place for private parties.

So basically, our state officials did as little as possible to correct the law after fighting tooth and nail (at great expense) to preserve what was in place. Boo.

I'm all for investigative journalism, but only as long as they do not interfere with ongoing (legitimate) police cases.

I suspect most people would agree with you, at least in principle. However, I doubt most people agree on what is and isn't a legitimate police operation. Even if everyone has the same basic standards, a certain amount of journalism might be necessary to determine whether it is or isn't.

This is why I always think there is going to be a dynamic tensions between law enforcement and journalism. Neither is going to get what they want all the time.

I'm not really sure how the Supreme Court works in regards to cases they uphold the rulings of lower courts. But it seems to me that by upholding the 7th Circuit on this one,....

The SCOTUS did not uphold it. They declined to review it, allowing the 7th Circuit Court's ruling to stand. It's worth keeping in mind that the majority of appeals/petitions to the SCOTUS are turned down. The reason this one is worth talking about is because of the high profile and two circuits have come to similar conclusions.

The SCOTUS often takes cases when the circuits are in conflict, so one reason not to take this case is because all of the circuits may reach similar conclusions, and thus no need for the SCOTUS to step in. On the other hand, they may have been interested, but other cases were more interesting/pressing.

Well put. Two circuit court rulings, along with the SCOTUS declining the opportunity to overturn them, sets a pretty substantial precedent. Another circuit could certainly come to the opposite conclusion, but they'd be asking to get overturned by the Supreme Court afterwards.

Maybe not "asking to get overturned" so much as "provoking a Circuit split", to force the Supreme Court to substantively address matter.

Well yes, that would definitely happen.

But I'm saying that if two circuits have ruled the same way, and the Supreme Court has declined to take the case (which is arguably a passive affirmation), then it's also likely that the nonconforming decision will not come out on top.

Just an observation, but Judge Posner has recently been lauded by Arsians for his viewpoints on patent law cases, while other judges have been getting a bit more flack. I doubt this position of Posner's on the First Amendment issue will be as popular here. So it bears keeping in mind that these are all complicated matters, and that another judge might hold exactly opposite views on both points. Personally, I'd prefer the judge that shares my views on the First Amendment even if we disagree on patent policy, as opposed to the opposite. But in either case, I wouldn't vilify, or praise, any judge too much based on one issue alone.

Posner seems to be a smart individual from the few marquee cases I've seen him judge in the last couple years. However, I can't say I know him well. Would he have stood against the law if he didn't know the other judges were striking it down? Was he just trying to make the contrarian point? That not every video of alleged police brutality is actually so under the law? The Illinois law was draconian and horrible and was rightly struck down, but he had a point. Just not a good one.

Does anyone know how the Seventh Circuit's opinion treated secretly recording police officers? In the Boston case, the judge noted that SCOTUS previously upheld the wiretapping conviction of a man that had secretly recorded a traffic stop. He had hidden the device under some papers on the passenger seat, IIRC. The opinion in the Boston case noted the difference between overtly recording police officers in public (protected by 1st Amend) and secretly recording police officers, even in public (not protected). The Boston judge came to the conclusion that the important distinction is not necessarily whether the officer actually noticed the recording in process, only that the officer could have easily noticed. Does the Seventh's opinion work similarly?

The reason I ask is two-fold. First, it would sort of work against Posner's "snooping" argument. Second, people need to be aware of the difference if they are going to start recording police officers. It would be a shame if articles like this encouraged people to start recording police officers, but they did it in a way that was still illegal. (To avoid misunderstanding, it would not, however, be a shame if articles like this encouraged people to record police officers in ways were perfectly legal.)

But I'm saying that if two circuits have ruled the same way, and the Supreme Court has declined to take the case (which is arguably a passive affirmation), then it's also likely that the nonconforming decision will not come out on top.

Or for all we know if they had time to take just one more case, they would have taken this one. The majority of petitions and appeals are declined, so we should not read too much into this.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

The Seventh Circuit court is a federal court. By denying this case, the SCOTUS has essentially let this ruling stand and implicitly supported it as legal precedent.

Precedent in the 7th circuit but not necessarily to be considered law elsewhere.

I thought about addressing this in my story but thought it might be too far down in the weeds.

You're right that refusing to hear the case doesn't create a binding precedent the way reviewing and affirming the decision would have. *However,* circuit courts do pay attention to what their sister circuits do. They aren't required to follow the precedents of other circuits (as they are Supreme Court decisions) but they are supposed to give those decisions some weight in rendering their decisions. So the fact that two different circuits have considered this issue and come to the same conclusion will weigh heavily on any future circuits that take up the same issue.

So it's not as big a deal as the Supreme Court affirming the decision, but it is important.

And now I'm behind (part of) an editor's choice comment on here. Think my internet is complete for the day.

I thought about addressing this in my story but thought it might be too far down in the weeds.

You're right that refusing to hear the case doesn't create a binding precedent the way reviewing and affirming the decision would have. *However,* circuit courts do pay attention to what their sister circuits do. They aren't required to follow the precedents of other circuits (as they are Supreme Court decisions) but they are supposed to give those decisions some weight in rendering their decisions. So the fact that two different circuits have considered this issue and come to the same conclusion will weigh heavily on any future circuits that take up the same issue.

So it's not as big a deal as the Supreme Court affirming the decision, but it is important.

Well put. Two circuit court rulings, along with the SCOTUS declining the opportunity to overturn them, sets a pretty substantial precedent. Another circuit could certainly come to the opposite conclusion, but they'd be asking to get overturned by the Supreme Court afterwards.

That is correct. And no judge wants to be overturned on appeal. If some other judge really feels strongly about it, they can rule differently. But it's like an open invitation to appeal to SCOTUS. Then either the Supreme Court will take the case, or send it back and tell them to think about it some more. Which is kind of like the teacher saying, "Is this your final answer?"

I live in the People's Republic of Illinois... I am so happy to see this horrible law overturned. Not all cops are corrupt, but some are. I have seen video of Chicago cops busting a television news crew for filming an arrest from across the street.

upholding a First Amendment right to record the police would lead to "a lot more of this snooping around by reporters and bloggers."

Yes, heaven forbid journalists snoop around and then discover and inform the public what their government and public employees are doing.

I'm all for investigative journalism, but only as long as they do not interfere with ongoing (legitimate) police cases.

Then that would be obstruction of justice, which is already covered by existing law.

The notion that citizens are not permitted to record what government officials do while government officials are given wider and wider latitude to record what citizens do (traffic cams, warrant-less wiretapping and so forth) isn't a civil liberties slippery slope, it's halfway down the mountain and gaining speed.

I find it irksome (problematic) that the government which wants unrestrained ability to search my phone machinery should nonetheless object when I wish to use that same machinery to record the activities of an agent of that government (e.g., a law officer) in performing a search.

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

The Seventh Circuit court is a federal court. By denying this case, the SCOTUS has essentially let this ruling stand and implicitly supported it as legal precedent.

Precedent in the 7th circuit but not necessarily to be considered law elsewhere.

The Supreme Court set the precedent for the entire country by ruling on this.

If this law makes the police uncomfortable then it is doing its job. people have the right to make recordings in public places and that includes the police. Publicity of this spreads awareness so people WILL record the police so that they WILL be held responsible for their actions and the more people know the police can't just take the camera from them and arrest them the better

Maybe I'm mistaken here, but it appears to me that leaving it in place does not affect the national level. It's good that they didn't touch it(as the ruling was good), but it would have been better to get it on the federal level instead of just that one area.

The Seventh Circuit court is a federal court. By denying this case, the SCOTUS has essentially let this ruling stand and implicitly supported it as legal precedent.

Precedent in the 7th circuit but not necessarily to be considered law elsewhere.

The Supreme Court set the precedent for the entire country by ruling on this.

Supreme Court didn't rule on it. It chose not to hear the case at all. Two very different things.

Isn't it ironic, that when police get more powers for surveillance (i'm in Australia, so we don't have the sort of rights americans enjoy, protecting them from the government) they keep on assuring us that if we don't have anything to hide, then we don't have anything to fear.

It's quite terrible that when the tables are turned, and it's the police who are now being scrutineered, they squeal like stuck pigs...

Isn't it ironic, that when police get more powers for surveillance (i'm in Australia, so we don't have the sort of rights americans enjoy, protecting them from the government) they keep on assuring us that if we don't have anything to hide, then we don't have anything to fear.

It's quite terrible that when the tables are turned, and it's the police who are now being scrutineered, they squeal like stuck pigs...

Isn't it ironic, that when police get more powers for surveillance (i'm in Australia, so we don't have the sort of rights americans enjoy, protecting them from the government) they keep on assuring us that if we don't have anything to hide, then we don't have anything to fear.

It's quite terrible that when the tables are turned, and it's the police who are now being scrutineered, they squeal like stuck pigs...

I cannot imagine any situation under which a competent, trained police officer should object to being recorded in the performance of their duties. If they are enforcing the law as directed by their government in clear procedural guidelines, then they should have nothing to fear from showing up on Youtube, Twitter or a print newspaper doing exactly that.

If there is a lack of guidelines, training or competence, then that wouldn't be the fault of the man in the street with a smartphone in his pocket, would it?

Isn't it ironic, that when police get more powers for surveillance (i'm in Australia, so we don't have the sort of rights americans enjoy, protecting them from the government) they keep on assuring us that if we don't have anything to hide, then we don't have anything to fear.

It's quite terrible that when the tables are turned, and it's the police who are now being scrutineered, they squeal like stuck pigs...

"2.Happening in the opposite way to what is expected, thus typically causing wry amusement."

So yes, it is ironic, because, while police keep on saying that we shouldn't have anything to fear, one would assume that the same applies to them, but clearly they don't like it as much as we do... ironic.